Supreme Court Changes Mind, Will Hear Two Gitmo Challenges

Scotus Blog reports that in a change not seen since 1968, the Supreme Court has reversed course in two Guantanamo cases. Months ago it denied the detainees' Petitions for Writ of Certiorari, refusing to accept their cases.

Today, by a ruling of at least 5 to 4, which is required for such a change, the Court reversed itself and said it will hear the appeals.

The petitions for rehearing are granted. The orders entered April 2, 2007, denying the petitions for writs of certiorari are vacated. The petitions for writs of certiorari are granted. The cases are consolidated and a total of one hour is allotted for oral argument. As it would be of material assistance to consult any decision in Bismullah, et al., v. Gates, No. 06-1197, and Parhat, et al., v. Gates, No. 06-1397, currently pending in the United States Court of Appeals for the District of Columbia Circuit, supplemental briefing will be scheduled upon the issuance of any decision in those cases.

Friday's order was an indication that those two Justices had decided that the Court needed to change its approach, and so provided the votes needed to grant rehearing. Under the Court's rules, a rehearing is granted only if there has been a change in "intervening circumstances of a substantial or controlling effect" or if counsel can cite "substantial grounds not previously presented."

The new order did not state what changes had come about since the denial in April. The detainees' lawyers, in their rehearing petition, had said that the unfolding of the review process in the D.C. Circuit Court would soon provide them with an argument for rehearing, since the process would be shown to be inadequate. More recently, the detainees' lawyers had told the Court that information from inside the Pentagon detainee-review process confirmed their claim that the process was a "sham."

So, what's up? I'll be looking for reactions by those more familiar with high court procedural rules than I am, but at first glance, it sounds to me like the Court wants to say something about the circumstances under which a detainee can seek review of a military commission decision in a federal court or how federal courts are to treat that review.

TalkLeft last discussed some of the deficiencies in the appeals process from Military Commission Act decisions here.

It seems the four "liberal" justices (Stevens, Breyer, Gisburg and Souter) are working as a bloc, with Kennedy the swing vote. To get a grant of cert, there have to be four votes for a grant. But, from the point of view of the four more liberal justices, it would not make sense to grant cert in a case where they could not be reasonably assured of a favorable result. So, likely one of those four deliberately did not vote for granting cert, to prevent a bad result. Now, with the sworn declaration from the soon-to-be-former JAG officer laying out the factual basis for the allegation that the CST process is a sham, the four were able to persuade Kennedy to go along.

Alternatively, the conservative four (Roberts, Alito, Scalia and Thomas) declined to vote for cert earlier, but have now tired of dealing with these filthy brown men and their terrist sympathiser lawyers bringing all this work to their desks, and managed to persuade Kennedy to go along with them and, once and for all, decide that they have no jurisdiction over the cases, further clearing their docket. That would permit the CSTs to proceed, and facilitate the secret trials of terrists of which the wingnuts are so enamored.

In case you're wondering "how enamored?", read this article on Richard Posner of the Seventh Circuit speaking to the Australian Bar, making a vigorous, forceful argument in favor of secret trials. He not only made his hosts gag with his wingnut speech insisting on such trials, but by making this speech he shat upon the award ceremony in which (soon-to-be-former) USMC JAG Michael Mori was made an honorary life member of the Australian Bar, for his distinguished service in the Hicks case. Behaved just like the true Rethug he is, Posner did, demanding that judging terrists not be "hog-tied by the Constitution". (Sound familiar? Like Addington's arguments, maybe?)

Posner's a leading light among "conservative" jurisprudence - twenty years ago he was mentioned in the same breath as Starr and Easterbrook as potential Repug nominees to the S.Ct., and he still gets mentions though, at this point, he's no longer young enough to be a viable pick. He gets to do plenty of damage on the Seventh Circuit, and he'll stay there.